United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NICHOLAS YIANNI (Representative)
For the Respondents	MR B HOOPER British Medical Association Bartree House 460 Palatine Road Northendon Manchester M22 4DJ


 


MR JUSTICE ELIAS:

1. This is an Appeal against the decision of the Employment Tribunal sitting at London South in which it recorded that the Appellant was unfairly dismissed and fixed compensation accordingly. The Appeal is directed against certain findings of the Tribunal, principally in relation to its assessment of compensation. We are grateful to Mr Yianni who has appeared on behalf of his wife to conduct the Appeal.
2. The background is as follows. The Appellant was a Practice Nurse in a Doctor's General Practice. She was dismissed by the Appellant in February 2002. Initially the employers disputed that she had been dismissed and alleged that, in any event, any dismissal was for incompetence. During the course of the Hearing however, the employer accepted that there was a dismissal and, furthermore, that it was not relying upon any allegation of incompetence. Accordingly, following an adjournment, it accepted that the dismissal was unfair.
3. Allegations of incompetence against a professional person are serious matters and should not be lightly made. It is highly unattractive for an employer to make those allegations and then withdraw them at the last minute and it may plainly cause real distress to an employee when that occurs. It does not, we have to say, reflect well on this employer that they acted in that way here. However, having conceded the unfair dismissal, the only issue facing the Tribunal itself was the question of compensation.
4. The Tribunal say in its decision that it adjourned the matter for a time to see if an agreement could be reached. At paragraph 8 of the Decision it says this:

"After a short adjournment the parties returned and the Respondent accepted that as an unfair dismissal had taken place on 22 February 2002, the parties should agree the amount of the basic award and loss of wages up to 8 June 2002. The only issues the parties wanted the Tribunal to determine was the amount of compensation payable for future loss. The parties also wanted the Tribunal to decide loss of Pension Rights from the date of dismissal and whether the Applicant was entitled to compensation for distress, humiliation, damage to reputation and financial loss flowing from the psychiatric injury as a consequence of the unfair dismissal."

5. The Tribunal, in fact, found that there was no loss in respect of injury to feelings or psychiatric injury or any future loss at all. It did, however, identify compensation for loss of statutory rights and a small loss for loss of pension rights, and we will return to that in a moment.
6. A preliminary point of some significance, raised by Mr Yianni, was this. He submitted that the Tribunal was quite wrong in saying that there had ever been any agreement reached between the parties in connection with loss. He said that his wife had turned down an offer and had not agreed at any stage any element of compensation, not even that relating to the basic award and compensation for loss of wages up to 8 June 2002, as alleged in the Tribunal decision. The difficulty with that is that we have a letter from the solicitor who was acting for the Appellant before the Tribunal but has not appeared before us, and she says in terms that there was an agreed settlement. In the light of that, it is impossible for us to go behind that statement. It is, of course, possible that the Appellant, perhaps in the heat of the moment or misunderstanding in conversation with the solicitor, was not aware that this agreement had been reached. But plainly, when a solicitor on behalf of a client says an agreement was reached at the Tribunal, one has to accept that that was so. We read that as, of course, not including the agreement in relation to the sums actually specified by the Industrial Tribunal as additional elements that had to be added on to the agreed amount, but in substance the solicitor is saying that there was an agreed settlement and we simply cannot accept Mr Yianni's contention to the contrary, albeit that we accept it is made in good faith and he and his wife may not have appreciated this fact. He also, in this connection, refers to paragraph 24 and puts some weight on that paragraph and we can deal with that here. The paragraph says this:

"The Tribunal having made its assessments on the specific issues it had been asked to determine was asked by the parties to adjourn to allow the parties to reach a negotiated settlement. On reconvening both the represented parties agreed to settle the case on the basis of the Respondent paying to the Applicant the sum of £4,505.85 by the 25 July 2002 in full and final settlement of all claims arising out of the Applicant's employment with the Respondent."

7. Mr Yianni is adamant that there never was an adjournment at that point in the proceedings. He says accordingly, there could not have been a settlement agreed between the parties in that sum. We accept that this paragraph may be confusing, it is possible that the Tribunal Chairman, writing his decision some months after the original decision had been taken, was misremembering the precise order of events. We are satisfied, however, that there is no fundamental error which is contained within this Decision. It is quite plain from reading the Decision as a whole that the Tribunal were saying that there had been an agreement as to losses up until 8 June, that there had not been agreement thereafter, that the Tribunal had fixed a sum in relation to that loss, and that the overall sum was therefore that fixed in the Agreement and with the figures calculated by the Tribunal to be added on. It may be that the parties effectively confirmed that this was the right figure. We know not precisely what occurred and we would accept Mr Yianni's evidence that the Tribunal was wrong to say that there had been an adjournment. But it does not, with respect, alter the fundamental point that the figure had been reached as a result of an agreement in respect of losses up to 8 June, coupled with the additional sums which the Tribunal awarded thereafter.
8. We now turn to consider the three heads of compensation which have been the subject of challenge by Mr Yianni. The first we can deal with very quickly. The Tribunal held that there was no satisfactory evidence of stress or injury to feelings, but whether that is so or not and whether the evidence sustained that or not, it is now clear, following the decision of this Court in Danehy v Kingston Upon Hull City Council [2003] IRLR 384, that no compensation is awarded for such loss.
9. Accordingly, that part of the challenge to the Tribunal's Decision is doomed to fail. As to the pension and future losses, the Tribunal, as we have indicated, accepted that there had been some pension loss up until 7 June and it calculated a small figure to reflect that. Mr Yianni says that the Tribunal was wrong in its calculation. It concluded that the pension arrangement was a money purchase pension scheme, whereas, in fact, it was a final salary pension scheme. The Tribunal may have indeed have got this wrong, though it is fair to record that, in its decision, it says of paragraph 14 that there was "a general lack of evidence" in relation to pension and the Tribunal had to do the best it could on the material before it. Had there been a plain error as to the nature of the scheme and had this had a significant effect on the proper compensation payable to Mrs Yianni, we might have considered whether there was some way of ensuring that justice was done. But we are satisfied that in this case, given that the compensation was payable only in respect of the months from February to June in any event, that it really would make very little difference which scheme was under consideration by the Tribunal when assessing losses for such a very short period.
10. Accordingly, we would not interfere with the Tribunal's Decision on this score and, as we have said, they had to reach a conclusion in any event on what was plainly rather unsatisfactory evidence before them.
11. We turn to the final element here which is the future loss. The Tribunal concluded that the Appellant had not sought, and was not seeking, to mitigate her loss. They say in terms that her evidence was that she did not want to work as a clinical nurse again, either in a doctor's General Practice or a hospital and that she had stated that she wanted to work with animals and to undertake voluntary work. Mr Yianni says that this is simply inconsistent with the evidence that was before the Tribunal. The problem with that argument is that, on the face of it at least, was that we do not have the Chairman notes, and as well established in cases such as Piggott Brothers v Jackson [1991] IRLR 309 that it is impossible to run arguments of perversity or decisions reached by an Industrial Tribunal against all the evidence if the Chairman's notes are not produced. In this case, an application was made for the Chairman's notes and unfortunately it was not considered by this Tribunal. It appears that the fact that the application had been made had somehow not been appreciated. It was not an application that was renewed at the Preliminary Hearing in this case. Strictly, it was highly desirable that it should have been, but we do not blame Mr Yianni for that, as a litigant in person. He, understandably, would have thought that his application would have been considered.
12. What did happen was that when it was appreciated that the Chairman's notes had not been sought, the Employment Appeal Tribunal asked the parties to agree - I should say required the parties to agree - a note in accordance with the EAT practice direction if they could. If they were unable to do so, then they were to provide written confirmation of that. The Respondent's reaction to that was to say that they declined to agree a note with the Appellants. We have to say quite firmly that that is not a proper response. The purpose of agreeing a note was to seek to ensure that this case could go ahead, if possible without the Chairman's notes, on the basis of an agreed note of the evidence. It may be that agreement could not be reached. It may be that it could be reached on all matters which are of any significance to this Tribunal. The response of the Respondents was not satisfactory and not acceptable. We have been told by Mr Hooper, on their behalf, that they had come to the conclusion that it would be impossible to agree the relevant note. That may well be so, but it was their duty to seek to make sure that a note was agreed if possible and, if not, then the Tribunal would have had to consider what to do in the light of that fact.
13. Now, in most cases, we have to say, where there is neither an agreed note nor the Chairman's notes having been produced, and the application for the notes has not even been considered by this Tribunal, then we would consider that matter ourselves and, if necessary, require the Chairman's notes in order for the Appellant properly to be able to pursue her Appeal. However, we are satisfied in this case that that would be an improper step to take, it would incur public expense, it would incur cost and time and, in truth, for reasons which we are about to give, it would give the Applicant a sense that she may still have a prospect of victory, when it seems to us on the material that is even before us, that she does not.
14. The reason is this. We have a part of a witness statement that was put before the Tribunal by Mrs Yianni. It was plainly before the Tribunal and it said this:

"After my experiences with the Respondent from 29 November onwards and also with Dr Riggs and Partners, I do not feel I would want to work for a practice again. I have not worked in a hospital for nearly 13 years and I feel that going back to one would be daunting as things will have changed so much. I anticipate looking for alternative employment, but since it is only two weeks since I was dismissed from Dr Riggs and Partners, I have not had the time to give this much thought."

15. We interpose here to note that the employment with Dr Riggs and Partners had been a short period of employment following the termination of the employment with the Respondent.
16. It seems to us plain in those circumstances that the Tribunal was entitled to reach the conclusion that it did at paragraph 12. The only purpose of getting the Chairman's notes is to see if there is evidence which would sustain its Decision, and that material which was before the Tribunal plainly would. Whether the notes would show that Mrs Yianni went on to say that she would work with animals and undertake voluntary work we do not know, although it does seem a surprising comment to make if there was no evidence about it at all, but that is not a point of any significance. The issue is not where she will work in the future, but whether she is choosing not to work as a Clinical Nurse, and the Tribunal concluded that she was choosing not to pursue that line in the future, and they could properly come to that view in the light of her own statement.
17. Accordingly, in these circumstances, we conclude that there is no basis on which we can properly interfere with the finding of the Tribunal as to the issue of future loss. There were a number of other matters that were raised by Mr Yianni, both in his skeleton argument and before us, which were not however in the Notice of Appeal. Perhaps most importantly he submitted that there was evidence of bias by the Tribunal and that they had reached a conclusion which they ought not to have reached prior to hearing any evidence. He says that it was made plain by the Tribunal that they were going to conclude that there was no future loss and that that matter had been communicated to parties even before evidence had been heard. It is right to say that some support for that is gleaned from the letter from the solicitor, to which we have already made reference. The difficulty with this ground in particular is that it is a serious allegation of bias which was not raised in the Notice of Appeal itself; it has surfaced at a later date. We think it may well be the case, as is often the case, that the Tribunal will have formed a preliminary view in the light of the material it had, including the witness statement from Mrs Yianni and the particular passages of that to which we have made reference, which led it to the provisional view that it was not likely that there would be compensation for future loss. It is not wrong for Tribunals to give indications of that kind to the parties as a steer to negotiations. In this case, the parties were not agreed, and the Tribunal then heard the evidence. We are not prepared to say, without this matter having been clearly and unambiguously put in the Notice of Appeal, and the Tribunal having had a full opportunity to deal with it, that the Tribunal has committed what would be a grave and improper error of listening to evidence with a wholly closed mind.
18. Accordingly, we are not prepared to consider that particular allegation in any more detail. It was also said that the Respondents interfered in the processes before the Tribunal and prevented Mrs Yianni from properly giving her evidence in the way in which she wished. There are also complaints about the reasons given by the Tribunal which cannot succeed since it is plain why the parties won and lost. We bear in mind in this case that Mrs Yianni was represented by a solicitor before the Tribunal and the solicitor has not thought it fit to join in any allegation of bias, nor has there been any suggestion from her that in any way the Tribunal conducted itself improperly or permitted interference from the Respondents lawyers which led to the hearing being conducted unfairly.
19. Accordingly, for these various reasons, and notwithstanding that we appreciate that Mr Yianni feels genuinely aggrieved with the conclusion of this Tribunal, we have to say that we can see no error of law in its conclusions and the Appeal is accordingly dismissed.